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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014-2015
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Family Law Amendment (Financial
Agreements and Other Measures) Bill
2015
No. , 2015
(Attorney-General)
A Bill for an Act to amend family law, and for
related purposes
No. , 2015
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Binding financial agreements
3
Family Law Act 1975
3
Schedule 2--Other measures
28
Part 1--Amendments commencing soon after Royal Assent
28
Division 1--Revival, variation and suspension of certain orders etc.
by family violence orders
28
Family Law Act 1975
28
Division 2--Status of Family Court of Australia
28
Family Law Act 1975
28
Division 3--Registries of the Family Court of Australia
29
Family Law Act 1975
29
Division 4--Offers of settlement
29
Family Law Act 1975
29
Division 5--Legal aid
29
Family Law Act 1975
29
Division 6--Injunctions
30
Family Law Act 1975
30
Division 7--Explanation of orders etc. inconsistent with family
violence orders
30
Family Law Act 1975
30
Division 8--Immunity of registrars
31
Family Law Act 1975
31
Division 9--Summary decrees
31
Family Law Act 1975
31
Division 10--Orders of costs against guardians ad litem
33
Family Law Act 1975
33
Division 11--Powers of arrest
34
ii
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
No. , 2015
Family Law Act 1975
34
Division 12--Family counselling and family dispute resolution
38
Family Law Act 1975
38
Division 13--Alternative constitutional basis for Part VII of the
Family Law Act 1975
39
Family Law Act 1975
39
Division 14--Family consultants and compliance with parenting
orders
39
Family Law Act 1975
39
Part 2--Amendments commencing up to 6 months after Royal
Assent
40
Division 1--Information to be provided by principal executive
officers of courts
40
Family Law Act 1975
40
Division 2--Offence of retaining child overseas
40
Family Law Act 1975
40
Division 3--Location orders for Child Abduction Convention
43
Family Law Act 1975
43
No. , 2015
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
1
A Bill for an Act to amend family law, and for
1
related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Family Law Amendment (Financial
5
Agreements and Other Measures) Act 2015.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
No. , 2015
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 6 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
3. Schedule 2,
Part 1
The day after this Act receives the Royal
Assent.
4. Schedule 2,
Part 2
A day or days to be fixed by Proclamation.
However, if any of the provisions do not
commence within the period of 6 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Binding financial agreements Schedule 1
No. , 2015
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
3
Schedule 1--Binding financial agreements
1
2
Family Law Act 1975
3
1 Before section 90A
4
Insert:
5
90AL Simplified outline of this Part
6
Persons who are contemplating marrying, are in a marriage or have
7
divorced may agree on either or both of the following:
8
(a)
how the property or financial resources of either or both
9
of the persons at a time before divorce are to be dealt
10
with if the marriage breaks down;
11
(b)
the maintenance of either of the persons during or after
12
the marriage.
13
Such an agreement is binding if the persons have each received
14
independent legal advice about the agreement before making it or a
15
court declares that the agreement is binding.
16
If an agreement is binding, a court can enforce it and cannot make
17
an order under Part VIII about property, financial resources or
18
maintenance covered by the agreement.
19
There are some limits on what provisions may be included in an
20
agreement and when they have effect.
21
There are also some rules affecting proceedings to enforce an
22
agreement if a law about proceeds of crime applies to property of
23
either or both of the persons who made the agreement.
24
An agreement may be terminated by a later agreement made by the
25
persons, if they have each received independent legal advice about
26
the termination, or may be set aside by a court in certain limited
27
circumstances.
28
Schedule 1 Binding financial agreements
4
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
No. , 2015
90AM Object of this Part and principles underlying it
1
(1) The object of this Part is to provide for prospective, current or
2
former parties to a marriage to make a binding agreement about
3
either or both of the following matters that excludes the power of a
4
court to make orders under Part VIII about those matters:
5
(a) how property or financial resources either or both parties had
6
before divorce are to be dealt with if the marriage breaks
7
down;
8
(b) the maintenance of either party during the marriage or after
9
divorce.
10
Note:
Section 71A provides that Part VIII does not apply to financial matters
11
or financial resources to which a financial agreement binding on the
12
parties applies.
13
(2) The principles underlying this object are that:
14
(a) prospective, current or former parties to a marriage should be
15
able to take responsibility for resolving the matters described
16
in paragraphs (1)(a) and (b) without involving a court; and
17
(b) such parties who make an agreement about those matters
18
should have certainty that the agreement will bind those
19
parties unless:
20
(i) they make another agreement to terminate the earlier
21
agreement; or
22
(ii) a court sets the agreement aside under this Act.
23
2 Section 90E
24
Before "A provision", insert "(1)".
25
3 Paragraph 90E(b)
26
Omit "the value of the portion", substitute "the amount or proportion of
27
the value".
28
4 At the end of section 90E
29
Add:
30
(2) Any amount, or proportion, described in paragraph (1)(b) may be
31
nil in relation to a person, or in circumstances, specified in the
32
agreement.
33
Binding financial agreements Schedule 1
No. , 2015
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
5
5 Application of amendments of section 90E
1
(1)
The amendments of section 90E of the Family Law Act 1975 made by
2
this Schedule apply in relation to financial agreements made before, on
3
or after the commencement of the amendments.
4
(2)
However, those amendments do not make a provision of a financial
5
agreement valid if, before the commencement of those amendments, a
6
court made an order under the Family Law Act 1975 on the basis that
7
the provision was void because of section 90E of that Act.
8
6 Section 90G
9
Repeal the section, substitute:
10
90G When financial agreements are binding
11
General rule
12
(1) For the purposes of this Act, a financial agreement made after
13
26 December 2000 is binding on the parties to the agreement if and
14
only if:
15
(a) the agreement is signed by all parties; and
16
(b) either:
17
(i) all the conditions in section 90GA (about legal advice
18
relating to the agreement) that are relevant to the
19
agreement are met; or
20
(ii) a court has made an order under section 90GB declaring
21
that the agreement is binding; and
22
(c) the agreement has not been terminated (before, on or after the
23
commencement of this section); and
24
(d) the agreement has not been set aside by a court (before, on or
25
after the commencement of this section).
26
Note 1:
This Part commenced on 27 December 2000.
27
Note 2:
Section 90J deals with termination of a financial agreement.
28
Note 3:
Section 90K deals with a court setting aside a financial agreement.
29
Note 4:
For the manner in which the contents of a financial agreement may be
30
proved, see section 48 of the Evidence Act 1995.
31
Schedule 1 Binding financial agreements
6
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
No. , 2015
Power of court to enforce binding financial agreement
1
(2) A court may make such orders for the enforcement of a financial
2
agreement that is binding on the parties to the agreement as it
3
thinks necessary.
4
90GA Conditions relating to legal advice for financial agreement or
5
termination agreement to be binding
6
(1) For the purposes of subparagraphs 90G(1)(b)(i) and 90J(2)(b)(i),
7
this section describes conditions for a financial agreement, or a
8
written agreement to terminate a financial agreement, to be
9
binding.
10
Note 1:
The conditions all relate to the provision of independent legal advice
11
to each spouse party before the agreement was made, but vary
12
according to when the agreement was made.
13
Note 2:
Section 90G describes other conditions that need to be met for a
14
financial agreement to be binding. Section 90J describes other
15
conditions that need to be met for a written agreement to terminate a
16
financial agreement to be binding.
17
Note 3:
If the conditions described in this section are not met but the other
18
conditions described in section 90G or 90J are, the agreement will be
19
binding if a court declares under section 90GB that the agreement is
20
binding.
21
Statement about legal advice given before agreement signed
22
(2) A condition for an agreement made after 26 December 2000 is that,
23
either before or after signing the agreement, each spouse party was
24
provided with a signed statement by a legal practitioner that, before
25
the agreement was signed, he or she provided that party with
26
independent legal advice about the matters described in the
27
following table for the agreement.
28
29
Independent legal advice about agreements made after 26 December 2000
When agreement
was made
Matters
1 Before 14 January
2004
(a) the effect of the agreement on the rights of that party; and
(b) whether or not, at the time when the advice was
provided, it was to the advantage, financially or
otherwise, of that party to make the agreement; and
Binding financial agreements Schedule 1
No. , 2015
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
7
Independent legal advice about agreements made after 26 December 2000
When agreement
was made
Matters
(c) whether or not, at that time, it was prudent for that party
to make the agreement; and
(d) whether or not, at that time and in the light of such
circumstances as were, at that time, reasonably
foreseeable, the provisions of the agreement were fair
and reasonable
2 14 January 2004
to 3 January 2010
(inclusive)
Either the matters set out in item 1 or the matters set out in
item 3
3 4 January 2010 to
the day before this
section
commenced
(inclusive)
(a) the effect of the agreement on the rights of that party; and
(b) the advantages and disadvantages, at the time the advice
was provided, to that party of making the agreement
4 After (or when)
this section
commenced
The effect of the agreement on the rights of that party under
this Act
Note 1:
The first 3 periods reflect the periods when the precursors to this
1
section made different provision for the matters to be dealt with in
2
independent legal advice about agreements. The matters for each of
3
those 3 periods reflect the provision the relevant precursor made for
4
that period.
5
Note 2:
This section commenced on the commencement of Schedule 1 to the
6
Family Law Amendment (Financial Agreements and Other Measures)
7
Act 2015.
8
Note 3:
For an agreement made before 4 January 2010, the statement may
9
have been provided by the legal practitioner in the form of a certificate
10
annexed to the agreement.
11
Extra conditions for agreements made after 3 January 2010
12
(3) The following table sets out extra conditions for agreements made
13
after 3 January 2010.
14
15
Schedule 1 Binding financial agreements
8
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
No. , 2015
Extra conditions for agreements made after 3 January 2010
When agreement
was made
Extra conditions
1 Before this
section
commenced
The statement provided to a spouse party as described in
subsection (2) is also given to the other spouse party or to a
legal practitioner for the other spouse party
2 After (or when)
this section
commenced
(a) the statement provided to a spouse party (the first party)
as described in subsection (2) is also given to the other
spouse party or to a legal practitioner for the other
spouse party; and
(b) either before or after signing the agreement, the first
party has made a written acknowledgement that, before
signing the agreement, he or she was provided with
independent legal advice about the effect of the
agreement on his or her rights under this Act; and
(c) the acknowledgement is also given to the other spouse
party or to a legal practitioner for the other spouse party
Agreement, statement and acknowledgement may be separate
1
(4) For the purposes of subsections (2) and (3), it does not matter
2
whether or not:
3
(a) the statement is annexed to the agreement; or
4
(b) the acknowledgement (if relevant) is in the same document
5
as, or annexed to, either the statement or the agreement.
6
Court not to consider provision of independent legal advice
7
(5) In determining whether an agreement is binding, a court is not to
8
consider whether advice described in subsection (2) was actually
9
provided.
10
90GB Court declaring financial agreement or termination
11
agreement to be binding
12
(1) This section applies if:
13
(a) a spouse party makes an application (the enforcement
14
application) to a court for an order declaring that a financial
15
agreement, or a written agreement to terminate a financial
16
agreement, is binding on the parties to the agreement; and
17
Binding financial agreements Schedule 1
No. , 2015
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
9
(b) not all of the relevant conditions in section 90GA for the
1
agreement to be binding are met.
2
(2) The court must make the order if it is satisfied that it would be
3
unjust and inequitable if the agreement were not binding on the
4
spouse parties to the agreement (disregarding any changes in
5
circumstances from the time the agreement was made).
6
Principles to be applied by court making declaration
7
(3) To avoid doubt, section 90KA applies in relation to the
8
enforcement application.
9
7 Section 90H
10
Before "A financial", insert "(1)".
11
8 At the end of section 90H
12
Add:
13
Cessation of maintenance on death of payee or payer
14
(2) However, a provision of a financial agreement (the maintenance
15
provision) for the maintenance of a spouse party to the agreement
16
ceases to have effect on the death of:
17
(a) the spouse party; or
18
(b) the person liable under the agreement for the maintenance.
19
(3) Subsection (2) does not apply so far as the agreement provides that
20
the maintenance provision continues to have effect despite the
21
death.
22
(4) Subsection (2) does not prevent the recovery of arrears of
23
maintenance due under the maintenance provision immediately
24
before the death mentioned in that subsection.
25
Recovery of amount paid after cessation
26
(5) If an amount is paid purportedly under the maintenance provision
27
after it ceases to have effect under subsection (2), the amount may
28
be recovered, by action in a court:
29
(a) by:
30
Schedule 1 Binding financial agreements
10
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
No. , 2015
(i) the person who was, immediately before the cessation,
1
liable under the agreement for maintenance of the
2
spouse party; or
3
(ii) that person's legal personal representative if that person
4
has died; and
5
(b) from:
6
(i) the spouse party; or
7
(ii) the spouse party's legal personal representative if the
8
spouse party has died.
9
Note:
As the action is a matrimonial cause, section 39 specifies the courts
10
that have jurisdiction, subject to the rest of Part V.
11
9 Application of amendments of section 90H
12
Subsections 90H(2), (3), (4) and (5) of the Family Law Act 1975 apply
13
to financial agreements made on or after the commencement of the
14
subsections.
15
10 After section 90H
16
Insert:
17
90HA Maintenance of spouse party who remarries or enters
18
into de facto relationship
19
(1) A provision of a financial agreement (the maintenance provision)
20
for the maintenance of a spouse party to the agreement ceases to
21
have effect when the spouse party:
22
(a) marries again; or
23
(b) enters into a de facto relationship with someone other than
24
the other spouse party.
25
(2) Subsection (1) does not apply so far as the agreement provides that
26
the maintenance provision continues to have effect despite the later
27
marriage or entry into a de facto relationship.
28
(3) Subsection (1) does not prevent the recovery of arrears of
29
maintenance due under the maintenance provision immediately
30
before the later marriage or entry into the de facto relationship.
31
Binding financial agreements Schedule 1
No. , 2015
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
11
Notice of remarriage or entry into de facto relationship
1
(4) If the maintenance provision ceases to have effect under
2
subsection (1), the spouse party must inform without delay the
3
person who was liable under the agreement for the maintenance of
4
the spouse party of the date of the later marriage or entry into
5
the de facto relationship.
6
Recovery of amount paid after cessation
7
(5) If an amount is paid purportedly under the maintenance provision
8
after it ceases to have effect under subsection (1), the amount may
9
be recovered, by action in a court:
10
(a) by:
11
(i) the person who was, immediately before the cessation,
12
liable under the agreement for maintenance of the
13
spouse party; or
14
(ii) that person's legal personal representative if that person
15
has died; and
16
(b) from:
17
(i) the spouse party; or
18
(ii) the spouse party's legal personal representative if the
19
spouse party has died.
20
Note:
As the action is a matrimonial cause, section 39 specifies the courts
21
that have jurisdiction, subject to the rest of Part V.
22
11 Application of section 90HA
23
Section 90HA of the Family Law Act 1975 applies in relation to
24
financial agreements made on or after the commencement of that
25
section.
26
12 Section 90J
27
Repeal the section, substitute:
28
90J Termination of financial agreement
29
Termination only by agreement
30
(1) The parties to a financial agreement made after 26 December 2000
31
may terminate the agreement only by later:
32
Schedule 1 Binding financial agreements
12
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
No. , 2015
(a) including a provision to that effect in another financial
1
agreement as mentioned in subsection 90B(4), 90C(4) or
2
90D(4); or
3
(b) making a written agreement (the termination agreement) to
4
that effect.
5
Conditions for termination agreement to be binding
6
(2) For the purposes of this Act, the termination agreement (whether
7
made before, on or after the commencement of this section) is
8
binding on the parties if and only if:
9
(a) the agreement is signed by all parties to the agreement; and
10
(b) either:
11
(i) all the conditions in section 90GA (about legal advice
12
relating to the agreement) that are relevant to the
13
agreement are met; or
14
(ii) a court has made an order under section 90GB declaring
15
that the agreement is binding; and
16
(c) the agreement has not been set aside by a court (before, on or
17
after the commencement of this section).
18
Court orders after termination of financial agreement
19
(3) A court may, on an application by a person who was a party to the
20
financial agreement that has been terminated, or by any other
21
interested person, make such order or orders (including an order
22
for the transfer of property) as it considers just and equitable for
23
the purpose of preserving or adjusting the rights of persons who
24
were parties to that financial agreement and any other interested
25
persons.
26
Note:
For the manner in which the contents of a financial agreement may be
27
proved, see section 48 of the Evidence Act 1995.
28
13 Transitional and saving provisions relating to
29
sections 90G and 90J of the Family Law Act 1975
30
Transitional provisions for court orders
31
(1)
An order made by a court under subsection 90G(1B) or 90J(2B) of the
32
Family Law Act 1975 before the repeal of those subsections by this
33
Binding financial agreements Schedule 1
No. , 2015
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
13
Schedule has effect on and after that repeal as if the order had been
1
made under section 90GB of that Act (as amended by this Schedule).
2
(2)
The repeal and substitution of section 90G of the Family Law Act 1975
3
by this Schedule does not affect the validity of an order made by a court
4
under subsection 90G(2) of that Act before the repeal.
5
(3)
The repeal and substitution of section 90J of the Family Law Act 1975
6
by this Schedule does not affect the validity of an order made by a court
7
under subsection 90J(3) of that Act before the repeal.
8
Effect of other court orders made on basis that financial
9
agreement was not binding
10
(4)
Despite sections 90G, 90GA, 90GB and 90J of the Family Law Act
11
1975 (as amended by this Schedule), a financial agreement made before
12
the commencement of those sections does not bind the parties to the
13
agreement for the purposes of that Act if, before that commencement, a
14
court made an order under section 79 or 83 of that Act on the basis that
15
the agreement did not bind the parties.
16
14 Paragraph 90K(1)(d)
17
Repeal the paragraph, substitute:
18
(d) if the court does not set the agreement aside:
19
(i) a child of the marriage; or
20
(ii) if the applicant has caring responsibility (as defined in
21
subsection (2)) for a child of the marriage--a party to
22
the agreement;
23
will suffer hardship for a reason described in
24
subsection (2A); or
25
15 Paragraph 90K(1)(f)
26
Omit "Part; or", substitute "Part.".
27
16 Paragraph 90K(1)(g)
28
Repeal the paragraph.
29
17 After subsection 90K(2)
30
Insert:
31
Schedule 1 Binding financial agreements
14
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
No. , 2015
(2A) For the purposes of paragraph (1)(d) applying to an agreement
1
described in column 1 of an item of the following table, the reason
2
for hardship is the reason described in column 2 of the item.
3
4
Reason for hardship if agreement is not set aside
Column 1
Agreement
Column 2
Reason
1
A financial agreement that:
(a) is expressed to be made under
section 90B; or
(b) is expressed to be made under
section 90C and was made before the
making of a separation declaration
described in subsection 90DA(2)
relating to the spouse parties to the
agreement
The occurrence, after the making of
the agreement, of a material change
in circumstances that relate to the
care, welfare and development of
the child of the marriage
2
A financial agreement that:
(a) is expressed to be made under
section 90C and was made at the
same time as, or after, the making of
a separation declaration described in
subsection 90DA(2) relating to the
spouse parties to the agreement; or
(b) is expressed to be made under
section 90D;
or a termination agreement
The arising, after the making of the
agreement, of circumstances that:
(a) are of an exceptional nature; and
(b) relate to the care, welfare and
development of the child of the
marriage
18 Application of amendments of section 90K
5
(1)
The amendments of section 90K of the Family Law Act 1975 made by
6
this Schedule apply to agreements made on or after the commencement
7
of the amendments.
8
(2)
The repeal of paragraph 90K(1)(g) of the Family Law Act 1975 by this
9
Schedule also applies to agreements made before the repeal.
10
(3)
However, that repeal does not affect the validity of an order made by a
11
court under paragraph 90K(1)(g) of the Family Law Act 1975 before
12
that repeal.
13
Binding financial agreements Schedule 1
No. , 2015
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
15
19 Before section 90UA
1
Insert:
2
90UAA Simplified outline of this Division
3
Persons who reside in certain States or in a Territory and either are
4
contemplating entering into a de facto relationship or are or were in
5
such a relationship may agree on either or both of the following:
6
(a)
how the property or financial resources of either or both
7
of the persons at a time before the breakdown of the
8
relationship are to be dealt with on that breakdown;
9
(b)
the maintenance of either of the persons after a
10
breakdown of the relationship.
11
Such an agreement is binding if the persons have each received
12
independent legal advice about the agreement before making it or a
13
court declares that the agreement is binding.
14
If an agreement is binding, a court can enforce it and cannot make
15
an order under Division 2 about property, financial resources or
16
maintenance covered by the agreement.
17
There are some limits on what provisions may be included in an
18
agreement and when they have effect.
19
An agreement may be terminated by a later agreement made by the
20
persons, if they have each received independent legal advice about
21
the termination, or may be set aside by a court in certain limited
22
circumstances.
23
90UAB Object of this Division and principles underlying it
24
(1) The object of this Division is to provide for prospective, current or
25
former parties to a de facto relationship to make a binding
26
agreement about either or both of the following matters that
27
excludes the power of a court to make orders under Division 2
28
about those matters:
29
Schedule 1 Binding financial agreements
16
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
No. , 2015
(a) how, in the event of a breakdown of the relationship,
1
property or financial resources either or both parties had
2
before the breakdown are to be dealt with;
3
(b) the maintenance of either party in the event of a breakdown
4
of the relationship.
5
Note:
Section 90SA provides that Division 2 does not apply to maintenance,
6
property or financial resources to which a Part VIIIAB financial
7
agreement binding on the parties applies.
8
(2) The principles underlying this object are that:
9
(a) prospective, current or former parties to
10
a de facto relationship should be able to take responsibility
11
for resolving the matters described in paragraphs (1)(a) and
12
(b) without involving a court; and
13
(b) such parties who make an agreement about those matters
14
should have certainty that the agreement will bind those
15
parties unless:
16
(i) they make another informed agreement to terminate the
17
earlier agreement; or
18
(ii) a court sets the agreement aside under this Act.
19
20 Paragraph 90UH(1)(b)
20
Omit "the value of the portion", substitute "the amount or proportion of
21
the value".
22
21 After subsection 90UH(1)
23
Insert:
24
(1A) Any amount, or proportion, described in paragraph (1)(b) may be
25
nil in relation to a person, or in circumstances, specified in the
26
agreement.
27
22 Application of amendments of section 90UH
28
(1)
The amendments of section 90UH of the Family Law Act 1975 made by
29
this Schedule apply in relation to Part VIIIAB financial agreements
30
made before, on or after the commencement of the amendments.
31
(2)
However, those amendments do not make a provision of a Part VIIIAB
32
financial agreement valid if, before the commencement of those
33
Binding financial agreements Schedule 1
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Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
17
amendments, a court made an order under the Family Law Act 1975 on
1
the basis that the provision was void because of section 90UH of that
2
Act.
3
23 Section 90UJ
4
Repeal the section, substitute:
5
90UJ When financial agreements are binding
6
(1) For the purposes of this Act, a Part VIIIAB financial agreement
7
(except one covered by section 90UE) made after 28 February
8
2009 is binding on the parties to the agreement if and only if:
9
(a) the agreement is signed by all parties; and
10
(b) either:
11
(i) all the conditions in section 90UJA (about legal advice
12
relating to the agreement) that are relevant to the
13
agreement are met; or
14
(ii) a court has made an order under section 90UJB
15
declaring that the agreement is binding; and
16
(c) the agreement has not been terminated (before, on or after the
17
commencement of this section); and
18
(d) the agreement has not been set aside by a court (before, on or
19
after the commencement of this section).
20
Note 1:
This Division commenced on 1 March 2009.
21
Note 2:
Section 90UL deals with termination of a Part VIIIAB financial
22
agreement.
23
Note 3:
Section 90UM deals with a court setting aside a Part VIIIAB financial
24
agreement.
25
Note 4:
For the manner in which the contents of a Part VIIIAB financial
26
agreement may be proved, see section 48 of the Evidence Act 1995.
27
(2) A Part VIIIAB financial agreement covered by section 90UE is
28
binding on the parties to the agreement if, and only if, the
29
agreement has not been terminated and has not been set aside by a
30
court.
31
Note 1:
This subsection (rather than subsection (1)) also applies to an
32
agreement that is treated as a Part VIIIAB financial agreement
33
because of item 87, 88, 91 or 92 of Schedule 1 to the Family Law
34
Schedule 1 Binding financial agreements
18
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
No. , 2015
Amendment (De Facto Financial Matters and Other Measures) Act
1
2008: see item 93 of that Schedule.
2
Note 2:
Items 87 and 88 of that Schedule deal with certain agreements made
3
before 1 March 2009 under a law of a State (except Western Australia
4
and South Australia) or Territory about financial matters that:
5
(a) relate to the parties to de facto relationships; and
6
(b) arise out of the breakdown of those relationships.
7
Note 3:
Items 91 and 92 of that Schedule deal with certain agreements made:
8
(a) before 1 July 2010 under a law of South Australia about such
9
matters; or
10
(b) if, on a particular day, Western Australia becomes a referring
11
State--before that day under a law of Western Australia about
12
such matters.
13
(3) A Part VIIIAB financial agreement ceases to be binding if, after
14
making the agreement, the parties to the agreement marry each
15
other.
16
Power of court to enforce binding Part VIIIAB financial agreement
17
(4) A court may make such orders for the enforcement of a
18
Part VIIIAB financial agreement that is binding on the parties to
19
the agreement as it thinks necessary.
20
90UJA Conditions relating to legal advice for financial agreement or
21
termination agreement to be binding
22
(1) For the purposes of subparagraphs 90UJ(1)(b)(i) and
23
90UL(2)(b)(i), this section describes conditions for a Part VIIIAB
24
financial agreement (except one covered by section 90UE), or a
25
written agreement to terminate a Part VIIIAB financial agreement,
26
to be binding.
27
Note 1:
The conditions all relate to the provision of independent legal advice
28
to each spouse party before the agreement was made, but vary
29
according to when the agreement was made.
30
Note 2:
Section 90UJ describes other conditions that need to be met for a
31
Part VIIIAB financial agreement to be binding. Section 90UL
32
describes other conditions that need to be met for a written agreement
33
to terminate a Part VIIIAB financial agreement to be binding.
34
Note 3:
If the conditions described in this section are not met but the other
35
conditions described in section 90UJ or 90UL are, the agreement will
36
be binding if a court declares under section 90UJB that the agreement
37
is binding.
38
Binding financial agreements Schedule 1
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Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
19
Statement about legal advice given before agreement signed
1
(2) A condition for an agreement made after 28 February 2009 is that,
2
either before or after signing the agreement, each spouse party was
3
provided with a signed statement by a legal practitioner that, before
4
the agreement was signed, he or she provided that party with
5
independent legal advice about the matters described in the
6
following table for the agreement.
7
8
Independent legal advice about agreements made after 28 February 2009
When agreement
was made
Matters
1 Before this
section
commenced
(a) the effect of the agreement on the rights of that party; and
(b) the advantages and disadvantages, at the time the advice
was provided, to that party of making the agreement
2 After (or when)
this section
commenced
The effect of the agreement on the rights of that party under
this Act
Note 1:
The first period is when the precursors to this section made different
9
provision for the matters to be dealt with in independent legal advice
10
about agreements. The matters for that period reflect the provision the
11
precursors made for that period.
12
Note 2:
This section commenced on the commencement of Schedule 1 to the
13
Family Law Amendment (Financial Agreements and Other Measures)
14
Act 2015.
15
Note 3:
For an agreement made before 4 January 2010, the statement may
16
have been provided by the legal practitioner in the form of a certificate
17
annexed to the agreement.
18
Extra conditions for agreements made after 3 January 2010
19
(3) The following table sets out extra conditions for agreements made
20
after 3 January 2010.
21
22
Extra conditions for agreements made after 3 January 2010
When agreement
was made
Extra conditions
1 Before this
section
The statement provided to a spouse party as described in
subsection (2) is also given to the other spouse party or to a
Schedule 1 Binding financial agreements
20
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
No. , 2015
Extra conditions for agreements made after 3 January 2010
When agreement
was made
Extra conditions
commenced
legal practitioner for the other spouse party
2 After (or when)
this section
commenced
(a) the statement provided to a spouse party (the first party)
as described in subsection (2) is also given to the other
spouse party or to a legal practitioner for the other
spouse party; and
(b) either before or after signing the agreement, the first
party has made a written acknowledgement that, before
signing the agreement, he or she was provided with
independent legal advice about the effect of the
agreement on his or her rights under this Act; and
(c) the acknowledgement is also given to the other spouse
party or to a legal practitioner for the other spouse party
Agreement, statement and acknowledgement may be separate
1
(4) For the purposes of subsections (2) and (3), it does not matter
2
whether or not:
3
(a) the statement is annexed to the agreement; or
4
(b) the acknowledgement (if relevant) is in the same document
5
as, or annexed to, either the statement or the agreement.
6
Court not to consider provision of independent legal advice
7
(5) In determining whether an agreement is binding, a court is not to
8
consider whether advice described in subsection (2) was actually
9
provided.
10
90UJB Court declaring financial agreement or termination
11
agreement to be binding
12
(1) This section applies if:
13
(a) a spouse party makes an application (the enforcement
14
application) to a court for an order declaring that a
15
Part VIIIAB financial agreement, or a written agreement to
16
terminate a Part VIIIAB financial agreement, is binding on
17
the parties to the agreement; and
18
Binding financial agreements Schedule 1
No. , 2015
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
21
(b) not all of the relevant conditions in section 90UJA for the
1
agreement to be binding are met.
2
(2) The court must make the order if it is satisfied that it would be
3
unjust and inequitable if the agreement were not binding on the
4
spouse parties to the agreement (disregarding any changes in
5
circumstances from the time the agreement was made).
6
Principles to be applied by court making declaration
7
(3) To avoid doubt, section 90UN applies in relation to the
8
enforcement application.
9
24 Section 90UK
10
Before "A Part", insert "(1)".
11
25 At the end of section 90UK
12
Add:
13
Cessation of maintenance on death of payee or payer
14
(2) However, a provision of a Part VIIIAB financial agreement (the
15
maintenance provision) for the maintenance of a spouse party to
16
the agreement ceases to have effect on the death of:
17
(a) the spouse party; or
18
(b) the person liable under the agreement for the maintenance.
19
(3) Subsection (2) does not apply so far as the agreement provides that
20
the maintenance provision continues to have effect despite the
21
death.
22
(4) Subsection (2) does not prevent the recovery of arrears of
23
maintenance due under the maintenance provision immediately
24
before the death mentioned in that subsection.
25
Recovery of amount paid after cessation
26
(5) If an amount is paid purportedly under the maintenance provision
27
after it ceases to have effect under subsection (2), the amount may
28
be recovered, by action in a court:
29
(a) by:
30
Schedule 1 Binding financial agreements
22
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
No. , 2015
(i) the person who was, immediately before the cessation,
1
liable under the agreement for maintenance of the
2
spouse party; or
3
(ii) that person's legal personal representative if that person
4
has died; and
5
(b) from:
6
(i) the spouse party; or
7
(ii) the spouse party's legal personal representative if the
8
spouse party has died.
9
Note:
As the action is a de facto financial cause, section 39B specifies the
10
courts that have jurisdiction, subject to the rest of Part V.
11
26 Application of amendments of section 90UK
12
Subsections 90UK(2), (3), (4) and (5) of the Family Law Act 1975 apply
13
to Part VIIIAB financial agreements made on or after the
14
commencement of the subsections.
15
27 After section 90UK
16
Insert:
17
90UKA Maintenance of spouse party who enters into
18
another de facto relationship or marries
19
(1) A provision of a Part VIIIAB financial agreement (the
20
maintenance provision) for the maintenance of a spouse party to
21
the agreement ceases to have effect when the spouse party:
22
(a) enters into a de facto relationship with someone other than
23
the other spouse party; or
24
(b) marries.
25
(2) Subsection (1) does not apply so far as the agreement provides that
26
the maintenance provision continues to have effect despite the later
27
entry into a de facto relationship or marriage.
28
(3) Subsection (1) does not prevent the recovery of arrears of
29
maintenance due under the maintenance provision immediately
30
before the later entry into the de facto relationship or marriage.
31
Binding financial agreements Schedule 1
No. , 2015
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
23
Notice of later entry into de facto relationship or marriage
1
(4) If the maintenance provision ceases to have effect under
2
subsection (1), the spouse party must inform without delay the
3
person who was liable under the provision for the maintenance of
4
the spouse party of the date of the later entry into
5
the de facto relationship or marriage.
6
Recovery of amount paid after cessation
7
(5) If an amount is paid purportedly under the maintenance provision
8
after it ceases to have effect under subsection (1), the amount may
9
be recovered, by action in a court:
10
(a) by:
11
(i) the person who was, immediately before the cessation,
12
liable under the agreement for maintenance of the
13
spouse party; or
14
(ii) that person's legal personal representative if that person
15
has died; and
16
(b) from:
17
(i) the spouse party; or
18
(ii) the spouse party's legal personal representative if the
19
spouse party has died.
20
Note:
As the action is a de facto financial cause, section 39B specifies the
21
courts that have jurisdiction, subject to the rest of Part V.
22
28 Application of section 90UKA
23
Section 90UKA of the Family Law Act 1975 applies in relation to
24
Part VIIIAB financial agreements made on or after the commencement
25
of that section.
26
29 Section 90UL
27
Repeal the section, substitute:
28
90UL Termination of financial agreement
29
Termination only by agreement
30
(1) The parties to a Part VIIIAB financial agreement made after
31
28 February 2009 may terminate the agreement only by later:
32
Schedule 1 Binding financial agreements
24
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
No. , 2015
(a) including a provision to that effect in another Part VIIIAB
1
financial agreement as mentioned in subsection 90UB(4),
2
90UC(4) or 90UD(4); or
3
(b) making a written agreement (the Part VIIIAB termination
4
agreement) to that effect.
5
Conditions for termination agreement to be binding
6
(2) For the purposes of this Act, the Part VIIIAB termination
7
agreement (whether made before, on or after the commencement of
8
this section) is binding on the parties if and only if:
9
(a) the agreement is signed by all parties to the agreement; and
10
(b) either:
11
(i) all the conditions in section 90UJA (about legal advice
12
relating to the agreement) that are relevant to the
13
agreement are met; or
14
(ii) a court has made an order under section 90UJB
15
declaring that the agreement is binding; and
16
(c) the agreement has not been set aside by a court (before, on or
17
after the commencement of this section).
18
Court orders after termination of financial agreement
19
(3) A court may, on an application by a person who was a party to the
20
Part VIIIAB financial agreement that has been terminated, or by
21
any other interested person, make such order or orders (including
22
an order for the transfer of property) as it considers just and
23
equitable for the purpose of preserving or adjusting the rights of
24
persons who were parties to that Part VIIIAB financial agreement
25
and any other interested persons.
26
Note:
For the manner in which the contents of a Part VIIIAB financial
27
agreement may be proved, see section 48 of the Evidence Act 1995.
28
30 Transitional and saving provisions relating to
29
sections 90UJ and 90UL of the Family Law Act 1975
30
Transitional provisions for court orders
31
(1)
An order made by a court under subsection 90UJ(1B) or 90UL(2B) of
32
the Family Law Act 1975 before the repeal of those subsections by this
33
Binding financial agreements Schedule 1
No. , 2015
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
25
Schedule has effect on and after that repeal as if the order had been
1
made under section 90UJB of that Act (as amended by this Schedule).
2
(2)
The repeal and substitution of section 90UJ of the Family Law Act 1975
3
by this Schedule does not affect the validity of an order made by a court
4
under subsection 90UJ(4) of that Act before the repeal.
5
(3)
The repeal and substitution of section 90UL of the Family Law Act
6
1975 by this Schedule does not affect the validity of an order made by a
7
court under subsection 90UL(3) of that Act before the repeal.
8
Effect of other court orders made on basis that financial
9
agreement was not binding
10
(4)
Despite sections 90UJ, 90UJA, 90UJB and 90UL of the Family Law Act
11
1975 (as amended by this Schedule), a Part VIIIAB financial agreement
12
made before the commencement of those sections does not bind the
13
parties to the agreement for the purposes of that Act if, before that
14
commencement, a court made an order under section 90SI or 90SM of
15
that Act on the basis that the agreement did not bind the parties.
16
31 Paragraph 90UM(1)(g)
17
Repeal the paragraph, substitute:
18
(g) if the court does not set the agreement aside:
19
(i) a child of the de facto relationship; or
20
(ii) if the applicant has caring responsibility (as defined in
21
subsection (4)) for a child of the de facto relationship--
22
a party to the agreement;
23
will suffer hardship for a reason described in
24
subsection (4A); or
25
32 Paragraph 90UM(1)(j)
26
Repeal the paragraph.
27
33 After subsection 90UM(4)
28
Insert:
29
(4A) For the purposes of paragraph (1)(g) applying to an agreement
30
described in column 1 of an item of the following table, the reason
31
for hardship is the reason described in column 2 of the item.
32
Schedule 1 Binding financial agreements
26
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
No. , 2015
1
Reason for hardship if agreement is not set aside
Column 1
Agreement
Column 2
Reason
1
A Part VIIIAB financial agreement that:
(a) is expressed to be made under
section 90UB; or
(b) is expressed to be made under
section 90UC and was made before
the making of a separation
declaration described in
subsection 90UF(3) relating to the
spouse parties to the agreement
The occurrence, after the making of
the agreement, of a material change
in circumstances that relate to the
care, welfare and development of
the child of the de facto relationship
2
A Part VIIIAB financial agreement that:
(a) is expressed to be made under
section 90UC and was made at the
same time as, or after, the making of
a separation declaration described in
subsection 90UF(3) relating to the
spouse parties to the agreement; or
(b) is expressed to be made under
section 90UD;
or a Part VIIIAB termination agreement
The arising, after the making of the
agreement, of circumstances that:
(a) are of an exceptional nature; and
(b) relate to the care, welfare and
development of the child of
the de facto relationship
34 Application of amendments of section 90UM
2
(1)
The amendments of section 90UM of the Family Law Act 1975 made by
3
this Schedule apply to agreements made on or after the commencement
4
of the amendments.
5
(2)
The repeal of paragraph 90UM(1)(j) of the Family Law Act 1975 by this
6
Schedule also applies to agreements made before the repeal.
7
(3)
However, that repeal does not affect the validity of an order made by a
8
court under paragraph 90UM(1)(j) of the Family Law Act 1975 before
9
that repeal.
10
35 Paragraph 90MG(3)(a)
11
Repeal the paragraph, substitute:
12
Binding financial agreements Schedule 1
No. , 2015
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
27
(a) the requirements set out in whichever one of
1
subsections 90MN(3) and (3A) applies to the agreement are
2
met; and
3
36 Subsection 90MN(3)
4
Omit "or termination agreement has no effect unless it complies with
5
the following requirements", substitute ", or termination agreement,
6
made before the commencement of subsection (3A) has no effect unless
7
the following requirements are met".
8
37 At the end of subsection 90MN(3)
9
Add:
10
Note:
Subsection (3A) commenced on the commencement of Schedule 1 to
11
the Family Law Amendment (Financial Agreements and Other
12
Measures) Act 2015.
13
38 After subsection 90MN(3)
14
Insert:
15
(3A) A flag lifting agreement, or termination agreement, made on or
16
after the commencement of this subsection has no effect unless the
17
following requirements are met:
18
(a) the agreement must be signed by both spouses;
19
(b) after the agreement is signed by the spouses, each spouse
20
must be provided with a copy of the agreement;
21
(c) either before or after signing the agreement:
22
(i) each spouse must be provided with a signed statement
23
by a legal practitioner that, before the agreement was
24
signed, he or she provided the spouse with independent
25
legal advice about the effect of the agreement on the
26
rights of the spouse under this Act; and
27
(ii) each spouse must make a written acknowledgement
28
that, before signing the agreement, he or she was
29
provided with independent legal advice about the effect
30
of the agreement on his or her rights under this Act;
31
(d) the statement provided to a spouse, and the acknowledgement
32
made by a spouse, as described in paragraph (c) must also be
33
given to the other spouse or to a legal practitioner for the
34
other spouse.
35
Schedule 2 Other measures
Part 1 Amendments commencing soon after Royal Assent
28
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
No. , 2015
Schedule 2--Other measures
1
Part 1--Amendments commencing soon after Royal
2
Assent
3
Division 1
--Revival, variation and suspension of certain
4
orders etc. by family violence orders
5
Family Law Act 1975
6
1 Subsection 68T(1)
7
Omit "earlier", substitute "earliest".
8
2 Paragraph 68T(1)(b)
9
Repeal the paragraph, substitute:
10
(b) the time specified in the interim order as the time at which
11
the revival, variation or suspension ceases to have effect; and
12
(c) the time the order, injunction or arrangement is affected by
13
an order (however described) made by a court, under
14
section 68R or otherwise, after the revival, variation or
15
suspension.
16
3 Application
17
The amendments of section 68T of the Family Law Act 1975 made by
18
this Division apply in relation to revivals, variations and suspensions,
19
that are made under section 68R of that Act on or after the
20
commencement of this Division, of orders, injunctions and
21
arrangements.
22
Division 2
--Status of Family Court of Australia
23
Family Law Act 1975
24
4 After subsection 21(2)
25
Insert:
26
Other measures Schedule 2
Amendments commencing soon after Royal Assent Part 1
No. , 2015
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
29
(2A) The Court is, and is taken always to have been, a court of law and
1
equity.
2
Division 3
--Registries of the Family Court of Australia
3
Family Law Act 1975
4
5 Subsection 36(1)
5
Omit "(1)".
6
6 Subsection 36(2)
7
Repeal the subsection.
8
Division 4
--Offers of settlement
9
Family Law Act 1975
10
7 Subsection 117C(2)
11
Omit "the fact that the offer has been made, or the terms of the offer,",
12
substitute "the terms of the offer".
13
8 Subsection 117C(3)
14
Repeal the subsection.
15
9 Application
16
The amendments made by this Division apply in relation to offers made
17
before, on or after the commencement of this Division.
18
Division 5
--Legal aid
19
Family Law Act 1975
20
10 Section 116C
21
Repeal the section.
22
Schedule 2 Other measures
Part 1 Amendments commencing soon after Royal Assent
30
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
No. , 2015
Division 6
--Injunctions
1
Family Law Act 1975
2
11 Subsection 114(2)
3
Repeal the subsection.
4
Division 7
--Explanation of orders etc. inconsistent with
5
family violence orders
6
Family Law Act 1975
7
12 At the end of subsection 60CC(1)
8
Add:
9
Note:
Section 68P also limits the effect of this section on a court making
10
decisions under that section about limiting, or not providing, an
11
explanation to a child of an order or injunction that is inconsistent
12
with a family violence order.
13
13 After subsection 68P(2)
14
Insert:
15
(2A) Subparagraph (2)(c)(iii) does not apply to a child if the court is
16
satisfied that:
17
(a) the child is too young to understand an explanation of the
18
order or injunction; or
19
(b) it is in the child's best interests not to receive an explanation
20
of the order or injunction.
21
(2B) Paragraph (2)(d) does not require inclusion of a matter in an
22
explanation given to a child if the court is satisfied that:
23
(a) the child is too young to understand the matter; or
24
(b) it is in the child's best interests for the matter not to be
25
included in the explanation.
26
(2C) In determining whether it is satisfied as described in
27
paragraph (2A)(b) or (2B)(b) of this section, the court may, but is
28
not required to, have regard to all or any of the matters set out in
29
Other measures Schedule 2
Amendments commencing soon after Royal Assent Part 1
No. , 2015
Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015
31
subsection 60CC(2) or (3). This has effect despite section 60CC
1
(How a court determines what is in a child's best interests).
2
Division 8
--Immunity of registrars
3
Family Law Act 1975
4
14 At the end of Division 4 of Part IVA
5
Add:
6
38Z Protection of Registrars conducting conferences about property
7
matters
8
(1) In conducting a conference that:
9
(a) is with the parties to property settlement proceedings; and
10
(b) relates to the matter to which the proceedings relate;
11
a Registrar of the Family Court, of the Federal Circuit Court or of a
12
Family Court of a State has the same protection and immunity as a
13
Judge of the Family Court has in performing the functions of a
14
Judge.
15
Note:
Registrar is defined in subsection 4(1).
16
(2) This section does not limit any other protection or immunity such a
17
Registrar has (in relation to such a conference or otherwise).
18
Division 9
--Summary decrees
19
Family Law Act 1975
20
15 After section 45
21
Insert:
22
45A Summary decrees
23
No reasonable prospect of successfully defending proceedings
24
(1) The court may make a decree for one party against another in
25
relation to the whole or any part of proceedings if:
26
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(a) the first party is prosecuting the proceedings or that part of
1
the proceedings; and
2
(b) the court is satisfied that the other party has no reasonable
3
prospect of successfully defending the proceedings or that
4
part of the proceedings.
5
No reasonable prospect of successfully prosecuting proceedings
6
(2) The court may make a decree for one party against another in
7
relation to the whole or any part of a proceedings if:
8
(a) the first party is defending the proceedings or that part of the
9
proceedings; and
10
(b) the court is satisfied that the other party has no reasonable
11
prospect of successfully prosecuting the proceedings or that
12
part of the proceedings.
13
When there is no reasonable prospect of success
14
(3) For the purposes of this section, a defence or proceedings or part of
15
proceedings need not be:
16
(a) hopeless; or
17
(b) bound to fail;
18
to have no reasonable prospect of success.
19
Proceedings that are frivolous, vexatious or an abuse of process
20
(4) The court may dismiss all or part of proceedings at any stage if it is
21
satisfied that the proceedings or part is frivolous, vexatious or an
22
abuse of process.
23
Costs
24
(5) If the court makes a decree, or dismisses all or part of proceedings,
25
under this section, the court may make such order as to costs as the
26
court considers just.
27
Action by court on its own initiative or on application
28
(6) The court may take action under this section on its own initiative or
29
on application by a party to the proceedings.
30
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This section does not limit other powers
1
(7) This section does not limit any powers that the court has apart from
2
this section.
3
Note:
Part XIB also gives courts powers relating to vexatious proceedings.
4
16 Section 102QA (note)
5
Repeal the note, substitute:
6
Note:
For example, section 45A allows a court to dismiss proceedings if it is
7
satisfied that they are vexatious.
8
17 Subsection 117(1)
9
Omit "subsection 70NFB(1)", substitute "subsections 45A(5) and
10
70NFB(1)".
11
18 Subsection 117(1)
12
Omit ", 117AC and 118", substitute "and 117AC".
13
19 Section 118
14
Repeal the section.
15
20 Application
16
(1)
The amendments made by this Division apply to proceedings instituted
17
before, on or after the commencement of this Division.
18
(2)
However, to avoid doubt, the repeal of section 118 of the Family Law
19
Act 1975 by this Division does not affect any action taken under that
20
section before the repeal of that section.
21
Division 10
--Orders of costs against guardians ad litem
22
Family Law Act 1975
23
21 Subsection 117(2)
24
Omit "and (5)", substitute ", (5) and (6)".
25
22 Before subsection 117(3)
26
Insert:
27
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Costs of independent children's lawyer
1
23 Before subsection 117(4A)
2
Insert:
3
Limit on orders relating to intervention under section 91B
4
24 Before subsection 117(5)
5
Insert:
6
Funding of independent children's lawyer not to affect costs order
7
25 At the end of section 117
8
Add:
9
Limit on orders against guardians ad litem
10
(6) The court must not make an order under subsection (2) against a
11
guardian ad litem unless the court is satisfied that one or more acts
12
or omissions of the guardian relating to the proceedings are
13
unreasonable or have delayed the proceedings unreasonably.
14
26 Application
15
The amendments made by this Division apply in relation to persons
16
who become guardians ad litem in proceedings on or after the
17
commencement of this Division, whether the proceedings were
18
instituted before, on or after that commencement.
19
Division 11
--Powers of arrest
20
Family Law Act 1975
21
27 Subsection 4(1)
22
Insert:
23
conveyance includes a vehicle, a vessel and an aircraft.
24
dwelling house includes a conveyance, or a room in
25
accommodation, in which people ordinarily retire for the night.
26
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28 Subsection 4(1) (definition of warrant issued under a
1
provision of this Act)
2
Repeal the definition.
3
29 Section 67Q (note 1)
4
Omit "Section 122AA authorises the use of reasonable force", substitute
5
"Section 122A deals with the use of reasonable force by certain
6
persons".
7
30 Subsection 68C(1) (note)
8
Omit "Section 122AA authorises", substitute "Section 122A deals
9
with".
10
31 Subsection 114AA(1) (note)
11
Omit "Section 122AA authorises", substitute "Section 122A deals
12
with".
13
32 Sections 122AA and 122A
14
Repeal the sections, substitute:
15
122A Making arrests under this Act or warrants
16
Application
17
(1) This section and section 122AA apply to any of the following
18
persons (the arrester) who is authorised by this Act, or by a
19
warrant issued under this Act, the standard Rules of Court or the
20
related Federal Circuit Court Rules, to arrest another person (the
21
arrestee):
22
(a) the Marshal of the Family Court;
23
(b) a Deputy Marshal of the Family Court;
24
(c) the Sheriff of the Federal Circuit Court;
25
(d) a Deputy Sheriff of the Federal Circuit Court;
26
(e) the Sheriff of a court of a State or Territory;
27
(f) a Deputy Sheriff of a court of a State or Territory;
28
(g) a police officer;
29
(h) the Australian Border Force Commissioner;
30
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(i) an APS employee in the Department administered by the
1
Minister administering the Australian Border Force Act
2
2015.
3
Use of force
4
(2) In the course of arresting the arrestee, the arrester:
5
(a) must not use more force, or subject the arrestee to greater
6
indignity, than is necessary and reasonable to make the arrest
7
or to prevent the arrestee's escape after the arrest; and
8
(b) must not do anything that is likely to cause the death of, or
9
grievous bodily harm to, the arrestee unless the arrester
10
reasonably believes that doing that thing is necessary to
11
protect life or prevent serious injury to another person
12
(including the arrester); and
13
(c) if the arrestee is attempting to escape arrest by fleeing--must
14
not do a thing described in paragraph (b) unless:
15
(i) the arrester reasonably believes that doing that thing is
16
necessary to protect life or prevent serious injury to
17
another person (including the arrester); and
18
(ii) the arrestee has, if practicable, been called on to
19
surrender and the arrester reasonably believes that the
20
arrestee cannot be arrested in any other way.
21
Informing the arrestee of grounds for arrest
22
(3) When arresting the arrestee, the arrester must inform the arrestee of
23
the grounds for the arrest.
24
(4) It is sufficient if the arrestee is informed of the substance of those
25
grounds, not necessarily in precise or technical language.
26
(5) Subsection (3) does not apply if:
27
(a) the arrestee should, in the circumstances, know the substance
28
of the grounds for the arrest; or
29
(b) the arrestee's actions make it impracticable for the arrester to
30
inform the arrestee of those grounds.
31
Other measures Schedule 2
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Family Law Amendment (Financial Agreements and Other Measures)
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37
122AA Powers to enter and search premises, and stop conveyances,
1
for making arrests under this Act or warrants
2
Power to enter premises
3
(1) If the arrester (see subsection 122A(1)) reasonably believes the
4
arrestee (see that subsection) is on premises, the arrester may enter
5
the premises, using such force as is necessary and reasonable in the
6
circumstances, at any time of the day or night for the purpose of
7
searching the premises for the arrestee or arresting the arrestee.
8
(2) However, the arrester must not enter a dwelling house between 9
9
pm one day and 6 am the next day unless he or she reasonably
10
believes that it would not be practicable to arrest the arrestee there
11
or elsewhere at another time.
12
Power to stop and detain conveyance
13
(3) If the arrester may enter and search a conveyance under
14
subsection (1) (disregarding subsection (2)), the arrester may, for
15
the purposes of effecting the entry and search, stop and detain the
16
conveyance.
17
Note:
The reference in subsection (1) to premises covers a conveyance: see
18
subsection (5).
19
Rules about stopping, detaining, entering and searching
20
conveyances
21
(4) If the arrester stops, detains, enters or searches a conveyance under
22
this section for the purposes of arresting the arrestee, the arrester:
23
(a) may use such assistance as is necessary; and
24
(b) must search the conveyance in a public place or in some
25
other place to which members of the public have ready
26
access; and
27
(c) must not detain the conveyance for longer than is necessary
28
and reasonable to search it; and
29
(d) may use such force as is necessary and reasonable in the
30
circumstances, but must not damage the conveyance by
31
forcing open a part of the conveyance unless:
32
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(i) the person (if any) apparently in charge of the
1
conveyance has been given a reasonable opportunity to
2
open that part; or
3
(ii) it is not possible to give that person such an opportunity.
4
Definition of premises
5
(5) In this section:
6
premises includes a place and a conveyance.
7
33 Application
8
The amendments made by this Division apply in relation to arrests:
9
(a) authorised by the Family Law Act 1975 on or after the
10
commencement of this Division; or
11
(b) authorised by warrants issued on or after that
12
commencement.
13
Division 12
--Family counselling and family dispute
14
resolution
15
Family Law Act 1975
16
34 At the end of section 10B
17
Add:
18
; or (c) one or more persons who may apply for a parenting order
19
under section 65C to deal with issues relating to the care of
20
children.
21
35 Paragraph 10F(a)
22
Repeal the paragraph, substitute:
23
(a) in which a family dispute resolution practitioner:
24
(i) helps people affected, or likely to be affected, by
25
separation or divorce to resolve some or all of their
26
disputes with each other; or
27
(ii) helps persons who may apply for a parenting order
28
under section 65C to resolve some or all of their
29
Other measures Schedule 2
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Family Law Amendment (Financial Agreements and Other Measures)
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39
disputes with each other relating to the care of children;
1
and
2
Division 13
--Alternative constitutional basis for Part VII
3
of the Family Law Act 1975
4
Family Law Act 1975
5
36 At the end of subsection 69ZH(2)
6
Add:
7
Note:
The provisions mentioned in this subsection are generally expressed in
8
terms of children, without distinguishing between children of
9
marriages and ex-nuptial children. This section does not limit the
10
operation of those provisions, but provides for an alternative
11
constitutional basis (relying on paragraphs 51(xxi) and (xxii) of the
12
Constitution), so those provisions can at least operate in relation to
13
children of marriages even if they cannot also operate in relation to
14
ex-nuptial children.
15
Division 14
--Family consultants and compliance with
16
parenting orders
17
Family Law Act 1975
18
37 Subsection 65L(1)
19
Omit "subsection (2)", substitute "subsections (2) and (3)".
20
38 At the end of section 65L
21
Add:
22
(3) A court may make an order under subsection (1) relating to a final
23
parenting order only if the court is satisfied that exceptional
24
circumstances warrant the making of the order under
25
subsection (1).
26
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No. , 2015
Part 2--Amendments commencing up to 6 months
1
after Royal Assent
2
Division 1
--Information to be provided by principal
3
executive officers of courts
4
Family Law Act 1975
5
39 At the end of subsection 12F(1)
6
Add:
7
; and (c) section 12D (about Part VII proceedings).
8
Division 2
--Offence of retaining child overseas
9
Family Law Act 1975
10
40 Subsection 65X(2)
11
After "65Z", insert ", 65ZAA".
12
41 Subsection 65X(2)
13
After "65Y", insert ", 65YA".
14
42 Section 65Y (heading)
15
Repeal the heading, substitute:
16
65Y Obligations if certain parenting orders have been made: taking
17
or sending a child outside Australia
18
43 After section 65Y
19
Insert:
20
65YA Obligations if certain parenting orders have been made:
21
retaining a child outside Australia
22
A person commits an offence if:
23
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(a) a parenting order to which this Subdivision applies is in force
1
in relation to a child; and
2
(b) the child has been taken or sent from Australia to a place
3
outside Australia, by or on behalf of a party to the
4
proceedings in which the parenting order was made:
5
(i) with the consent in writing (authenticated as prescribed)
6
of each person in whose favour the parenting order was
7
made; or
8
(ii) in accordance with an order of a court made, under this
9
Part or under a law of a State or Territory, at the time, or
10
after, the parenting order was made; and
11
(c) the person retains the child outside Australia otherwise than
12
in accordance with the consent or order (whether or not the
13
person took or sent the child as mentioned in paragraph (b));
14
and
15
(d) the person was a party to the proceedings in which the
16
parenting order was made, or is retaining the child on behalf
17
of, or at the request of, such a party.
18
Note:
The ancillary offence provisions of the Criminal Code, including
19
section 11.1 (attempt), apply in relation to the offence created by this
20
subsection.
21
Penalty: Imprisonment for 3 years.
22
44 Section 65Z (heading)
23
Repeal the heading, substitute:
24
65Z Obligations if proceedings for the making of certain parenting
25
orders are pending: taking or sending a child outside
26
Australia
27
45 After section 65Z
28
Insert:
29
65ZAA Obligations if proceedings for the making of certain
30
parenting orders are pending: retaining a child outside
31
Australia
32
A person commits an offence if:
33
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(a) proceedings (the Part VII proceedings) for the making, in
1
relation to a child, of a parenting order to which this
2
Subdivision applies are pending; and
3
(b) the child has been taken or sent from Australia to a place
4
outside Australia by or on behalf of a party to the Part VII
5
proceedings:
6
(i) with the consent in writing (authenticated as prescribed)
7
of each other party to the Part VII proceedings; or
8
(ii) in accordance with an order of a court made, under this
9
Part or under a law of a State or Territory, after the
10
institution of the Part VII proceedings; and
11
(c) the person retains the child outside Australia otherwise than
12
in accordance with the consent or order (whether or not the
13
person took or sent the child as mentioned in paragraph (b));
14
and
15
(d) the person is a party to the Part VII proceedings, or is
16
retaining the child on behalf of, or at the request of, such a
17
party.
18
Note:
The ancillary offence provisions of the Criminal Code, including
19
section 11.1 (attempt), apply in relation to the offence created by this
20
subsection.
21
Penalty: Imprisonment for 3 years.
22
46 Paragraph 65ZD(a)
23
Omit "or sent", substitute ", sent or retained".
24
47 Paragraph 65ZD(b)
25
Omit "or sending", substitute ", sending or retaining".
26
48 At the end of Subdivision E of Division 6 of Part VII
27
Add:
28
65ZE Extended geographical jurisdiction--category D
29
Section 15.4 of the Criminal Code (extended geographical
30
jurisdiction--category D) applies to an offence against
31
section 65YA or 65ZAA (retaining a child outside Australia).
32
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43
49 Paragraph 117A(1)(b)
1
Omit "or 65Z", substitute ", 65YA, 65Z or 65ZAA".
2
50 Application
3
(1)
The amendments made by this Division apply to:
4
(a) a child taken or sent from Australia on or after the
5
commencement of this Division; or
6
(b) a child taken or sent from Australia before the
7
commencement of this Division, if the period specified in the
8
consent or order in accordance with which the child was
9
taken or sent:
10
(i) ended after that commencement; or
11
(ii) was extended so that it ended after that commencement.
12
(2)
Subitem (1) does not apply to the amendments of sections 65Y, 65Z and
13
65ZD of the Family Law Act 1975 made by this Division.
14
Division 3
--Location orders for Child Abduction
15
Convention
16
Family Law Act 1975
17
51 At the end of section 67K
18
Add:
19
(4) For the purposes of the Child Abduction Convention, a person
20
(including one appointed as the Central Authority for the
21
Commonwealth, a State or a Territory for the purposes of Article 6
22
of the Convention) may apply to a court for a location order.
23
(5) In subsection (4):
24
Child Abduction Convention means the Convention on the Civil
25
Aspects of International Child Abduction done at The Hague on
26
25 October 1980.
27
Note:
The Child Abduction Convention is in Australian Treaty Series 1987
28
No. 2 ([1987] ATS 2) and could in 2015 be viewed in the Australian
29
Treaties Library on the AustLII website (http://www.austlii.edu.au).
30